25. Sexual Offences

Recommendation 25–1 State and territory sexual assault provisions should include a wide definition of sexual intercourse or penetration, encompassing:

1. penetration (to any extent) of the genitalia (including surgically constructed genitalia) or anus of a person by the penis or other body part of another person and/or any object manipulated by a person;
2. penetration of the mouth of a person by the penis of a person; and
3. continuing sexual penetration as defined in paragraph (a) or (b) above.

Recommendation 25–2 Federal, state and territory sexual offence provisions should provide a uniform age of consent for all sexual offences.

Recommendation 25–3 The Australian, state and territory governments should review the utilisation and effectiveness of persistent sexual abuse type offences, with a particular focus on offences committed in a family violence context.

Recommendation 25–4 Federal, state and territory sexual offence provisions should include a statutory definition of consent based on the concept of free and voluntary agreement.

Recommendation 25–5 Federal, state and territory sexual offence provisions should set out a non-exhaustive list of circumstances that may vitiate consent including, at a minimum:

1. lack of capacity to consent, including because a person is asleep or unconscious, or so affected by alcohol or other drugs as to be unable to consent;
2. where a person submits because of force, or fear of force, against the complainant or another person;
3. where a person submits because of fear of harm of any type against the complainant or another person;
4. unlawful detention;
5. mistaken identity and mistakes as to the nature of the act (including mistakes generated by the fraud or deceit of the accused);
6. abuse of a position of authority or trust; and
7. intimidating or coercive conduct, or other threat, that does not necessarily involve a threat of force, against the complainant or another person.

Recommendation 25–6 Federal, state and territory sexual assault provisions should provide that it is a defence to the charge of ‘rape’ that the accused held an honest and reasonable belief that the complainant was consenting to the sexual penetration.

Recommendation 25–7 State and territory sexual offence provisions should provide that the judge must, if it is relevant to the facts in issue in a sexual offence proceeding, direct the jury:

1. on the meaning of consent, as defined in the legislation;
2. on the circumstances where there may be no consent, and the consequence of a finding beyond reasonable doubt that one of these circumstances exists;
3. that a person is not to be regarded as having consented to a sexual act just because:
   1. the person did not say or do anything to indicate that she or he did not consent; or
   2. the person did not protest or physically resist; or
   3. the person did not sustain physical injury; or­
   4. on that, or an earlier, occasion the person consented to engage in a sexual act—whether or not of the same type—with that person or another person.
   5. Where evidence is led, or an assertion is made, that the accused believed that the complainant was consenting to the sexual act, then the judge must direct the jury to consider:
4. any evidence of that belief;
5. whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps;
6. the reasonableness of the accused’s belief in all the circumstances, including the accused’s knowledge or awareness of any circumstance that may vitiate consent; and
7. any other relevant matter.

Recommendation 25–8 State and territory legislation dealing with sexual offences should state that the objectives of the sexual offence provisions are to:

1. uphold the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity; and
2. protect children, young people and persons with a cognitive impairment from sexual exploitation.

Recommendation 25–9 State and territory legislation dealing with sexual offences, criminal procedure or evidence, should contain guiding principles, to which courts should have regard when interpreting provisions relating to sexual offences. At a minimum, these guiding principles should refer to the following:

1. sexual violence constitutes a form of family violence;
2. there is a high incidence of sexual violence within society;
3. sexual offences are significantly under-reported;
4. a significant number of sexual offences are committed against women, children and other vulnerable persons, including those from Indigenous and culturally and linguistically diverse backgrounds, and persons with a cognitive impairment;
5. sexual offenders are commonly known to their victims; and
6. sexual offences often occur in circumstances where there are unlikely to be any physical signs of an offence having occurred.